Does the state have the authority to make it a crime to burn an American flag? Does it matter if it's part of a political protest or a means for expressing a political opinion?
These were the questions posed in the 1989 Supreme Court case of Texas v. Johnson. It was a landmark decision that brought into question the bans on flag desecration found in the laws of many states.
Fast Facts: Texas v. Johnson
- Case Argued: March 21, 1989
- Decision Issued: June 21, 1989
- Petitioner: State of Texas
- Respondent: Gregory Lee Johnson
- Key Question: Is burning or otherwise destroying an American flag a form of speech that's protected under the First Amendment?
- Majority Decision: Justices Brennan, Marshall, Blackmun, Scalia, and Kennedy
- Dissenting: Justices Rehnquist, White, Stevens, and O'Connor
- Ruling: The respondent's actions were deemed by the court to be expressive conduct of a distinctively political nature, so in this context, burning the flag was considered a form of protected expression under the First Amendment.
Background to Texas v. Johnson
The 1984 Republican National Convention took place in Dallas, Texas. In front of the convention building, Gregory Lee (Joey) Johnson soaked an American flag in kerosene and burned it while protesting the policies of Ronald Reagan. Other protesters accompanied this by chanting “America; red, white and blue; we spit on you.”
Johnson was arrested and convicted under a Texas law against intentionally or knowingly desecrating a state or national flag. He was fined $2000 and sentenced to one year in jail.
He appealed to the Supreme Court where Texas argued that it had a right to protect the flag as a symbol of national unity. Johnson argued that his freedom to express himself protected his actions.
Texas v. Johnson: Decision
The Supreme Court ruled 5 to 4 in favor of Johnson. They rejected the claim that the ban was necessary to protect breaches of the peace due to the offense that burning a flag would cause.
The State's position… amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace and that the expression may be prohibited on this basis. Our precedents do not countenance such a presumption. On the contrary, they recognize that a principal “function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or… even stirs people to anger.”
Texas claimed that they needed to preserve the flag as a symbol of national unity. This undermined their case by conceding that Johnson was expressing a disfavored idea.
Since the law stated that desecration is illegal if “the actor knows it will seriously offend one or more persons,” the court saw that the state's attempt to preserve the symbol was tied to an attempt to suppress certain messages. “Whether Johnson's treatment of the flag violated Texas law thus depended on the likely communicative impact of his expressive conduct.”
Justice Brennan wrote in the majority opinion:
If there is a bedrock principle underlying the First Amendment, it is that Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. …
Forbidding criminal punishment for conduct such as Johnson's will not endanger the special role played by our flag or the feelings it inspires… Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength…
The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong… We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by - as one witness here did - according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.
Supporters of bans on flag burning say they aren't trying to ban the expression of offensive ideas, just the physical acts. This means that desecrating a cross could be outlawed because it only bans physical acts and other means of expressing the relevant ideas can be used. Few, though, would accept this argument.
Burning the flag is like a form of blasphemy or “taking the Lord's name in vain,” It takes something revered and transforms it into something base, profane, and unworthy of respect. This is why people are so offended when they see a flag being burned. It is also why burning or desecration is protected - just as blasphemy is.
The Significance of the Court's Decision
Although only narrowly, the Court sided with free speech and free expression over the desire to suppress speech in the pursuit of political interests. This case sparked years of debate over the meaning of the flag. This included efforts to amend the Constitution to allow for a prohibition of the “physical desecration” of the flag.
More immediately, the decision inspired Congress to rush through passage of the Flag Protection Act of 1989. The law was designed for no other purpose but to ban the physical desecration of the American flag in defiance of this decision.
Texas v. Johnson Dissents
The Supreme Court decision in Texas v. Johnson was not unanimous. Four justices - White, O'Connor, Rehnquist, and Stevens - disagreed with the majority's argument. They did not see that communicating a political message by burning the flag outweighed the state interest in protecting the flag's physical integrity.
Writing for Justices White and O'Connor, Chief Justice Rehnquist argued:
The public burning of the American flag by Johnson was no essential part of any exposition of ideas, and at the same time it had a tendency to incite a breach of the peace… Johnson's public burning of the flag obviously did convey Johnson's bitter dislike of his country. But his act… conveyed nothing that could not have been conveyed and was not conveyed just as forcefully in a dozen different ways.
By this measure, it would be okay to ban a person's expression of ideas if those ideas can be expressed in other ways. That would mean that it's okay to ban a book if a person can speak the words instead, wouldn't it?
Rehnquist admits that the flag occupies a unique place in society. This means that an alternative form of expression which does not use the flag won't have the same impact, significance, or meaning.
Far from being a case of “one picture being worth a thousand words,” flag burning is the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others.
Grunts and howls do not inspire laws banning them, however. A person who grunts in public is looked at as being strange, but we don't punish them for not communicating in whole sentences. If people are antagonized by the desecration of the American flag, it's because of what they believe is being communicated by such acts.
In a separate dissent, Justice Stevens wrote:
One intending to convey a message of respect for the flag by burning it in a public square might nonetheless be guilty of desecration if he knows that others - perhaps simply because they misperceive the intended message - will be seriously offended. Indeed, even if the actor knows that all possible witnesses will understand that he intends to send a message of respect, he might still be guilty of desecration if he also knows that this understanding does not lessen the offense taken by some of those witnesses.
This suggests that it's permissible to regulate people's speech based upon how others will interpret it. All of the laws against “desecrating” an American flag do so in the context of publicly displaying the altered flag. This would also apply to laws that merely prohibit attaching an emblem to a flag.
Doing it in private isn't a crime. Therefore, the harm to be prevented must be the “harm” of others witnessing what was done. It can't merely be to prevent them from being offended, otherwise, public discourse would be reduced to platitudes.
Instead, it must be to protect others from experiencing a radically different attitude towards and interpretation of the flag. Of course, it's unlikely that someone would be prosecuted for desecrating a flag if only one or two random people are upset. That will be reserved for those who upset larger numbers of witnesses.
In other words, the wishes of the majority to not be confronted with something too far outside their normal expectations can limit what sorts of ideas are expressed (and in what way) by the minority.
This principle is completely foreign to constitutional law and even to the basic principles of liberty. This was eloquently stated the following year in the Supreme Court's follow-up case of United States v. Eichman:
While flag desecration - like virulent ethnic and religious epithets, vulgar repudiations of the draft, and scurrilous caricatures - is deeply offensive to many, the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.
If freedom of expression is to have any real substance, it must cover the freedom to express ideas that are uncomfortable, offensive, and disagreeable.
That's precisely what burning, defacing, or desecrating an American flag often does. The same is true with defacing or desecrating other objects which are commonly revered. The government has no authority to limit people's uses of such objects to communicate only approved, moderate, and inoffensive messages.